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Open Meetings

Type:

ESSAY

In addition to open records acts, the federal government and each state also have open meetings laws. An open meeting law, on any level, generally requires that the government hold meetings, deliberate, and make decisions in the open. The laws also generally require that the public is given advanced notice of upcoming meetings as well as the subject matter of the meeting.

If a meeting is held in secret or in violation of the law otherwise, the sanctions can range from merely publishing a transcript or minutes of the meeting to negating any decisions made at the meeting to penalties such as fines or criminal charges.

There are two main laws on the federal level that govern openness of federal meetings: the Government in the Sunshine Act and the Federal Advisory Committee Act.

The Sunshine Act applies to the agencies that are "headed by a collegial body composed of two or more individual members, a majority of whom are appointed to such position by the president." Even agencies with only one person running the day-to-day operations can be a "collegial body" under the act, like the U.S. Postal Service. Subdivisions of federal agencies are also subject to the Act as long as they are not boards or committees staffed by outsiders.

Similar to the federal Freedom of Information Act, the President himself, Congress, and federal courts are not subject to the law. The Act requires that “every portion of every meeting of an agency shall be open to public observation.”

Federal bodies must announce the time, place and subject of the meeting at least one week prior to the meeting date. It is not clear what a “public announcement” is under the law, but some agencies do little beyond obligatory publishing in the Federal Register, while others also post notice at their offices or on the Internet.

While you have a right to attend a government meeting under the law, there is no right automatic to participate in the meeting.

When a meeting is taped by the agency, getting access to that tape is an open records issue under FOIA.

There are ten exemptions to the Sunshine Act, under which a meeting can be closed. The exemptions largely mimic those found in FOIA and allow a meeting to be closed if there is a likelihood that a meeting will, for example, disclose confidential information, invade someone's personal privacy or reveal information related directly to a lawsuit.

The Sunshine Act does not grant any rights to record, photograph or televise federal meetings. Agencies, therefore, may or may not allow taping, at their discretion. This discretion allows agencies to limit the type of recordings at their meetings. The FCC, for example, allows only audio recordings during its meetings.

A meeting is can be closed by a vote, which must be public. A transcript of the closed meeting must be taken and non-exempt portions must be made public. If a meeting is found to be improperly closed, the full transcript may need to be released.

Congress does not enforce the Sunshine Act, so if there is a violation, one must sue. Under the law, any person may sue to enforce the act. If bringing suit under the act, you may challenge any rule or law that was passed during a meeting in violation of the act or you can sue to enforce the meetings law through a declaratory judgment -- where a judge states what the law is and whether it is being violated -- or through injunctive relief -- where a judge orders that certain offensive behavior cease. You may sue before the closed meeting is held, where a judge may order the meeting opened, or after the meeting.

FACA applies to federal advisory committees that that are “established” and “utilized” to advise or make recommendations for the President and executive branch agencies. Advisory committees must provide 15 days public notice of meetings which must include the date, time, location and purpose of the meeting and all materials provided to committees, i.e. reports, transcripts, minutes, must be provided to the public. If the meeting is closed or partially closed, the notice must state the reason and the exemption applied. Exemptions to the Sunshine Act apply to FACA meetings.

State open meeting laws

At the state level, open meeting laws are similar in scope to the federal Sunshine Act, allowing local residents to attend a range of meetings from the local city council to the local school board, through state-level offices.

States have similar notice requirements as the federal laws. Meetings are open to the entire public and not just residents of a particular city, town or state, with state laws saying the meetings must be open to “any” person or to “the public.”

Under most state laws, the public is allowed to record meetings, both with video and audio recording equipment, as long as it does not disturb the meeting. For example, in Oregon, the attorney general said the public cannot be prevented from "unobtrusively recording" meetings in a 1976 opinion. In Missouri, statute specifically permits the public to record meetings through audio, video or electronic means, but public bodies are allowed to establish guidelines to minimize disruption.

Along this line, livestreaming, liveblogging and tweeting about a meeting may also be allowed. The general standard for recording is that it is allowed as long as it is, as discussed above, "unobtrusive" or does not disturb or interfere with the proceedings. The extent of your ability to record, tweet or liveblog a meeting will vary state to state, so you should check out open government guide to see what the law is in [your state].

Meetings can be in person or digital, but how does one exercise their right to observe a meeting held over email or via text message? States handle the situation differently, but if digital communications like email or text messaging are considered "meetings" in your state, officials will have to satisfy the notice requirements and the communications will have to be made available to the public in order to avoid violating the law.

For example, in Missouri, the law requires that online meetings, via Internet chat or other online means, satisfy the normal notice requirements and, in addition, the notice must tell the public the "mode by which the meeting will be conducted" and a location where the public may go to "observe and attend the meeting."

In other states, the use of email may not count as a meeting, but it would be considered an open meetings violation if it was used. The Rhode Island open meetings law, for example, specifically prohibits the use of email to circumvent the law.

Many states have provisions where conference calls or online communications can fall into the state definition of a “meeting.” Arkansas does not consider email conversations a meeting, but Colorado specifically addresses the possibility of email being a meeting if it is used to discuss pending legislation or other public business.

Unlike in federal law, where both the legislature and the courts are not subject to the open meeting laws, some states do include the legislature in their meeting laws. Court proceedings at the state level are generally open, like the federal court system, under a First Amendment right of access. [Check out our State Open Government Guide to see what the law is what bodies in [your state] are subject to the open meetings law.]

While it may be too late to get into a meeting if you are denied access at the door, all states provide some sort of judicial remedy where you can bring suit against a body that improperly held a closed meeting. If you have notice before a meeting is held that it will be closed, most states will allow you to challenge that classification before the date of the meeting. If a meeting is closed in violation of the law, suing afterwards can result in a court overturning the law or rules passed at the meeting. Recently, this happened in Wisconsin when a judge overturned the controversial bill curbing the collective bargaining rights of unions because there was not enough notice given before the meeting.

In Asgeirsson v. Abbott,a federal district court in Texas recently held that the state’s open meetings law does not violate the First Amendment rights of city officials. Litigation has been ongoing in the case since 2006 and is based on claims that officials’ speech rights are impeded due to fear of repercussions if private conversations -- either through email or when passing each other in the hallway -- are deemed to constitute a meeting under the law. The court dismissed this position because there are ways to remedy a breach of the law without being charged a fine or with a criminal violation. In fact, the court held that rather than chill speech, the open meetings law promotes speech and transparency. The case is currently being appealed to the U.S. Court of Appeals in New Orleans (5th Cir.).